Federal Judge Clears the Way for Lawsuit Challenging U.S. Government's Immigration Detainers

December 4, 2012

A federal judge in Illinois has ruled that Heartland Alliance’s National Immigrant Justice Center, in collaboration with Winston & Strawn LLP, can proceed with a federal lawsuit that challenges the U.S. government’s use of immigration detainers, a key tool in the Secure Communities enforcement program which has resulted in record levels of immigration detention and deportation under the Obama administration.

The Honorable John Z. Lee of the U.S. District Court for Northern Illinois found that the two plaintiffs—including a U.S. citizen—can sue the government even though it lifted their detainers soon after they filed the lawsuit. The Department of Homeland Security (DHS) issues detainers to instruct local police to continue to detain individuals after the local police’s authority has expired, until DHS officers arrive to take the individuals into custody. The plaintiffs are representatives of a possible class action consisting of thousands of individuals subjected to immigration detainers.

“This is an important ruling that overcomes a significant obstacle that advocates around the nation have faced as we try to hold the government accountable for its unconstitutional use of immigration detainers,” said NIJC National Litigation Coordinator Mark Fleming. “The government cannot simply cancel wrongful detainers in order to duck legal action that challenges this practice.”

One of the lawsuit’s lead plaintiffs is Jose Jimenez Moreno, a 34-year-old U.S. citizen who was subject to an immigration detainer for months at a county jail in Winnebago County, Illinois. DHS lifted the detainer in August 2011, after Jimenez Moreno filed the federal lawsuit. Two additional U.S. citizen plaintiffs have sought to intervene in the case, one of whom alleges he spent nearly a year in a maximum security prison due to an immigration detainer.

NIJC argues that the detainers violate the Fourth and Fifth Amendments because 1) DHS fails to establish probable cause before issuing the detainers, 2) does not notify individuals that detainers have been issued against them, and 3) provides no means by which individuals can challenge their extended detention. Additionally, DHS’s use of detainers violates the 10th Amendment because it requires state and local governments to implement federal law.

Detainers have become an important immigration enforcement tool for DHS, allowing it to vastly increase deportations while passing the cost on to local law enforcement agencies. Under the Secure Communities program, when local police make an arrest, they must send fingerprint information to a federal immigration database, which frequently triggers detainer requests. According to data obtained through a Freedom of Information Act request, DHS issued about 271,000 immigration detainers in fiscal year 2009 and more than 201,000 detainers through the first 11 months of fiscal year 2010.